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When Should Federal Law Allow Domain Seizures?

My co-blogger David Post has authored several passionate posts harshly criticizing the federal government’s recent practice of seizing domain names pursuant to ex parte court orders based on probable cause. In his post yesterday, David calls the process “nightmarish,” and describes it as a “regime under which you can wake up one morning and find that you have been ‘disappeared’ without anyone having even given you any advance notice that you were in trouble with the law.”

I have a different reaction, in part because I don’t see an order to redirect a domain name as quite the same as abducting a person, and in part because the law presently requires the same amount of process for the government to order a domain name redirected as it does to authorize the government to abduct a person (in both cases, a court order based on probable cause). But instead I wanted to focus on the more constructive question: If you could design a law to regulate this problem, what would it contain?

Let me be specific. Imagine I set up a website, host it on a server somewhere, and and I use it to post all sorts of unlawful material. I leave no trace as to my identity, and I post the materials on a server far from me, so the government doesn’t know who I am. Maybe the server is in the United States, maybe it is not. Here’s the question: What powers should the United States government have to shut down the site if my hosting of the materials may or does violate federal law?

More specifically, imagine the government has four different possible ways to “shut down” my site.

1) The government could break into the site that hosts the server and take the server offline (only an option if the server is inside the U.S.);
2) The government could order the provider to stop hosting it (again, only an option if the server is inside the U.S.);
3) The government could take the site down directly online, such as by a denial of service attack; or
4) The government could order that the domain name authorities redirect traffic so that efforts to visit the site using the site’s domain name would be directed elsewhere.

(Just to be clear, I’m not advocating these powers; I’m just noting that the power to “shut down” a site might include them.)

Here’s the question: Which of these steps should the government be allowed to take, and under what circumstances? Should a warrant be required, and if so, should it be enough? Should notice be provided to the owners of the sites, and if so, how should notice be given if the owner of the site is intentionally trying to remain hidden? Should a trial be required, with witnesses, and if so, how should that proceed if the owners of the sites are trying to remain unknown? What should the standard be for the trial? If any of the four steps listed above are to be taken, how long should they be allowed — should it be a permanent ban, or only a temporary one?

Finally, note that the hypothetical above is not limited to copyright. In the hypothetical, I have posted “all sorts of unlawful material.” There are lots of different kinds of such material. It could be copyrighted works that I have posted without permission, or classified information, or child pornography. Should the seizure powers apply differently, allowing more government rights in some sorts of cases and fewer in others?